Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
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197402ZU34
ppi 201502ZU4645
Vol.41 N° 77
Abril
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2023
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
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ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
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gra fía So cio Eco nó mi ca de Ve ne zue la de RE DIN SE, In ter na tio nal Bi blio graphy of
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Pe rio di cals Di rec tory, EBS CO. Se en cuen tra acre di ta da al Re gis tro de Pu bli ca cio-
nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
Di rec to ra
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OIRALITH
M. C
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Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
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Vol. 41, Nº 77 (2023), 760-776
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Recibido el 17/01/23 Aceptado el 03/04/23
Criminal liability for humanitarian
aid embezzlement during war:
The case of Ukraine
DOI: https://doi.org/10.46398/cuestpol.4177.50
Dmitriy Kamensky *
Oleksandr Dudorov **
Andrii Savchenko ***
Roman Movchan ****
Yuliia Danylevska *****
Abstract
The aim of the article was to reveal the content of the
controversial elements of the illegal use of humanitarian aid,
provided for in Article 201-2 of the Criminal Code of Ukraine;
to clarify the validity of the introduction of this prohibition and,
moreover, to discuss its impact on law enforcement. All of which in
order to be able to determine the prospects for the development of criminal
law in the eld. Several research methods have been used in the article,
such as: comparative, systemic-structural and legal-formal. Referring to
the appropriate methodological basis has made it possible to delve into the
issues of criminal liability for embezzlement of humanitarian aid funds in
Ukraine. Based on the results of the comparative analysis, it has been noted
that there are no special provisions on appropriation and embezzlement
of humanitarian aid items in the legislation of certain European states. As
a conclusion it has been argued that the introduction of article 201-2 in
the Criminal Code, is an example of excessive criminalization because: in
this case, the act, which is inherent in the social harmfulness necessary for
criminalization, did not require criminalization, since criminal liability for
it has already existed and is broadly typied in the law.
* Doctor of Legal Sciences, Professor, Professor of the Legal Courses Department of the Berdyansk State
Pedagogical University (Berdyansk, Ukraine). ORCID ID: https://orcid.org/0000-0002-3610-2514
** Doctor of Legal Sciences, Professor, Professor of the Department of Criminal Law Policy and Criminal
Law of the Educational and Scientic Institute of Law at Taras Shevchenko National University of Kyiv
(Kyiv, Ukraine). ORCID ID: https://orcid.org/0000-0003-4860-0681
*** Doctor of Legal Sciences, Professor, Professor of the Criminal Law Department of the National
Academy of Internal Aairs (Kyiv, Ukraine). ORCID ID: https://orcid.org/0000-0003-2101-296X
**** Doctor of Legal Sciences, Professor, Professor of the Department of Constitutional, International and
Criminal Law of the Donetsk National University named after Vasyl Stus (Vinnitsa, Ukraine). ORCID
ID: https://orcid.org/0000-0003-2074-8895
***** Candidate of Legal Sciences, Senior Researcher, Head of Doctoral Studies of the Donetsk State
University of Internal Aairs (Kropivnitskiy, Ukraine). ORCID ID: https://orcid.org/0000-0002-
1893-8473
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CUESTIONES POLÍTICAS
Vol. 41 Nº 77 (2023): 760-776
Keywords: humanitarian aid; charitable donations; misappropriation
of humanitarian aid; embezzlement; criminal liability for
embezzlement.
Responsabilidad penal por malversación de ayuda
humanitaria durante la guerra: el caso de Ucrania
Resumen
El objetivo del artículo fue revelar el contenido de los elementos
controvertidos del uso ilegal de la ayuda humanitaria, previsto en el artículo
201-2 del Código Penal de Ucrania; aclarar la validez de la introducción
de esta prohibición y, además, discutir su impacto en la aplicación de la
ley. Todo lo cual para poder determinar las perspectivas de desarrollo
del derecho penal en la materia. En el artículo se han utilizado varios
métodos de investigación, tales como: comparado, sistémico-estructural y
jurídico-formal. La remisión a la base metodológica adecuada ha permitido
profundizar en las cuestiones de la responsabilidad penal por malversación
de fondos de ayuda humanitaria en Ucrania. Basándose en los resultados
del análisis comparativo, se ha observado que no existen disposiciones
especiales sobre la apropiación y malversación de artículos de ayuda
humanitaria en la legislación de ciertos Estados europeos. Como conclusión
se ha argumentado que la introducción del articulo 201-2 en el Código Penal,
es un ejemplo de criminalización excesiva porque: en este caso, el acto,
que es inherente a la nocividad social necesaria para la criminalización, no
requería la criminalización, puesto que la responsabilidad penal por ello ya
ha existido y está ampliamente tipicada en la ley.
Palabras clave: ayuda humanitaria; donaciones caritativas; apropiación
indebida de ayuda humanitaria; malversación de
fondos; responsabilidad penal por malversación.
Introduction
Throughout its history, humanity has encountered various manifestations
of military conicts, disasters and other extraordinary events. Only in
modern times realizing its liability to those aected by such events, global
community has learned to cope with their consequences. It was from this
collective awareness that the modern understanding of humanitarian aid as
a manifestation of solidarity has developed; later on, a block of legal norms
designed to regulate such activities has been created.
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Criminal liability for humanitarian aid embezzlement during war: The case of Ukraine
Today, international humanitarian organizations operating in many
countries of the world enjoy recognized authority and are actively supported.
We refer primarily to the International Federation of the Red Cross and Red
Crescent, the World Health Organization, the United Nations Children’s
Fund, the World Food Program, “Doctors without Borders”, as well as
dozens of other funds and organizations of similar prole.
The Russian invasion of Ukraine on February 24, 2022 has led to
approximately sixteen million people being either displaced from their
homes or struggling to survive in the extreme conditions of the conict
and in urgent need of humanitarian assistance. This emergency has
caused serious challenges for the international humanitarian aid system
(Issues, 2022). Also, Russia’s armed aggression against Ukraine has put
on the agenda the need to solve a number of issues related to this event,
including the adaptation of national criminal legislation to the conditions
and challenges of martial law.
In a short period, more than ten laws were adopted in the emergency
mode, designed to improve the mechanism of criminal law regulation
of social relations in the relevant sphere. Among other things, based on
the Law of Ukraine of March 24, 2022 “On Amendments to the Criminal
Code of Ukraine Regarding Liability for Illegal Use of Humanitarian Aid”
(hereinafter – the Law of March 24, 2022) the Criminal Code of Ukraine
(hereinafter, if no other reservations are made – Criminal Code) has been
supplemented by Art. 201-2 “Illegal use of humanitarian aid, charitable
donations or gratuitous aid for prot”.
Since not only the military, but also ordinary people currently need
help, humanitarian aid to Ukraine from the international community is
of particular importance. Along with powerful economic and political aid,
it has become an important component of support for Ukraine, which
generally demonstrates a decent level of management of international
humanitarian aid and does everything to increase transparency in this
area (Kostin et al., 2022). At the same time, the National Agency for the
Prevention of Corruption identies a number of factors, which can lead
to a loss of trust by international donors and a decrease in the amount of
humanitarian aid provided to Ukraine.
Among such factors is the lack of a proper response by the state to the
facts of the illegal use of humanitarian aid and communication policy to
take eective measures to prevent such cases, due to which law enforcement
agencies are faced with the issue of monitoring compliance with laws and
preventing possible cases of embezzlement and misuse of humanitarian
aid as one of the priority tasks under conditions of martial law and armed
aggression against Ukraine (Corruption, 2022).
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Oenses related to humanitarian aid distribution, including its
embezzlement, not only violate provisions of the criminal law, but are also
a manifestation of shameful, immoral behavior directed against persons
who are already de facto in a vulnerable state (because they are victims of
a military conict or other emergency events). The social inadmissibility of
such abuses is caused both by assaults on other people’s property and by a
cynical violation of the fundamental right of recipients of humanitarian aid
to receive it.
Based on the decision of the Parliament of Ukraine of September 20,
2022, the Temporary Investigative Commission of the Verkhovna Rada
of Ukraine has been established to investigate possible violations of the
legislation of Ukraine in the eld of receiving, distribution, transportation,
storage, use for the intended purpose of humanitarian and other aid, as
well as inecient use of state property, which may be used for temporary
accommodation of internally displaced persons as well as provision of other
needs of the state. In addition, law enforcement agencies of Ukraine have
actively “joined” in combating schemes of illegal use of humanitarian aid,
which is delivered from both international and domestic donors. This has
led to the formation of a signicant body of the practical experience in
applying Art. 201-2 of the Criminal Code.
According to the information provided by the Minister of Internal
Aairs of Ukraine, today law enforcement ocers record the most cases
of theft of humanitarian aid in the capital city of Kyiv, as well as in Lviv,
Kharkiv and Kirovohrad regions. In most cases oenders’ appropriate cars,
fuel, medicines, body armor and food products – all items purchased for the
army. Moreover, some of the schemes exposed by law enforcement ocers
have been organized by citizens of the Russian Federation, in particular by
creating ctitious “charity” Telegram channels for the purpose of obtaining
and then illegally appropriating items of humanitarian aid (Most cases,
2022).
We believe that the law making and law-enforcement experience of
Ukraine in terms of criminal law countermeasures against the abuse of
humanitarian aid can be potentially useful for other countries, in which
armed conicts or other emergency situations may become factors, which
trigger such illegal abuses.
1. Methodology
While working on this research paper, several methods of research have
been employed extensively. They include the following. The comparative
law method has enabled to research embezzlement statutes in several
European jurisdictions and then to compare foreign models with relevant
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Dmitriy Kamensky, Oleksandr Dudorov, Andrii Savchenko, Roman Movchan y Yuliia Danylevska
Criminal liability for humanitarian aid embezzlement during war: The case of Ukraine
Ukrainian statutes. Such comparative analyses have revealed that, unlike
in Ukraine, there are no specic humanitarian aid embezzlement statutes
in European legislation. It should be added that currently the comparative
law method is widely used when researching various issues of white-collar
crime (Pidgorodynskyi et al., 2021; Reznik et al., 2020).
The system-structural method has been used to describe applicable
statutes and their location within the structures of the national Criminal
Codes. By referring to this method, components of scientic approaches to
understanding problematic issues and ways of developing the “war-related”
block of the criminal law of Ukraine in the context of European integration
have been discussed.
The formal-legal method has enabled us to analyze in detail the legal
meaning of the provisions of regulatory legal acts, which cover operation of
charity (humanitarian) foundations as well as distribution of humanitarian
aid.
Overall, extensive use of appropriate methodological base has allowed
to look deeper into the issues of criminal liability for humanitarian aid
embezzlement in Ukraine, even more so in the context of the unprovoked
military aggression against this country.
It is worth adding that general principles of criminal law have also
remained in focus while working on this research – namely, the principle of
legality, the principle of equality of citizens before the law, the principle of
humanism, and the principle of justice (Danylevskyi et al., 2020).
2. Recent research and ndings
Though being a rather new statute (enacted in March of 2022), the
issues of criminal liability for the illegal use of humanitarian aid in Ukraine
have been studied, in particular, by A. Aydinyan (2022), O. Kolb (2022), M.
Kutsevich (2022), O. Kryshevich (2022), O. Marin (2022), M. Havronyuk
(2022), A. Shevchuk and O. Bondaruk (2022). Works by these researchers
contain a lot of meaningful and interesting (sometimes controversial)
positions regarding the legal analyses of the oense under Art. 201-2 of
the Criminal Code, as well as regarding ways of improving the statutory
language.
We have also previously addressed some problematic issues of the
criminal law characteristics of the oense provided for in Art. 201-2 of the
Criminal Code (Dudorov and Movchan, 2022). In particular, we have found
out the fallacy of placing this prohibition among the articles of the Criminal
Code on liability for economic criminal oenses.
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Vol. 41 Nº 77 (2023): 760-776
For their part, such scholars from other countries (Ukraine excluded)
as G. Corn (2010), E. Engle (2012), B. Jakovljević (1987), J. Lyall (2018),
F. Schwendimann (2011), R. Stoels (2004) and some other have also
addressed provisions of international humanitarian aid law in their works.
Looking ahead, we note that the works of foreign authors are devoted to
various aspects of international humanitarian law, as well as the issues of
observance and protection of human rights and fundamental freedoms in
the territories of military conicts as well as in the occupied territories.
Such works do not deal with the abuse of humanitarian aid provided
to the local population by international donors, and, even more so, with
the criminal law assessment of such abuses. As will be shown below, in
other states, particularly in European countries, the issue of illegal use
of humanitarian aid practically does not exist, which is indicated by the
absence of both relevant criminal law prohibitions and the coverage of such
issues in scientic research.
However, from the standpoint of law-making and law-enforcement
realities in Ukraine, Art. 201-2 of the Criminal Code requires an in-depth
scientic analysis both from the point of view of clarifying its eectiveness
and consistency with the provisions of regulatory legislation and other
criminal law prohibitions, and in the context of using the comparative
method.
3. Results and discussion
We will start with a brief reference to the international law aspects, which
partially relate to the problem under review. Nowadays, humanitarian aid
can be provided both at the national and international levels; this also
applies to legal norms, which regulate humanitarian activities. International
humanitarian assistance becomes necessary where a separate state is
involved in a humanitarian mission and faces diculties in individually
assuming this responsibility, and when it believes that coordinated
international actions are able to successfully complement national eorts,
while recognizing all components of the state sovereignty (Jakovljević,
1987).
Based on the norms of international law, the state must ensure the
basic needs of the population living on its territory. This thesis stems
primarily from the well-established principle of state sovereignty enshrined
in international law. In particular, Resolution 46/182 (1991) of the UN
General Assembly (Guiding Principles of Humanitarian Assistance)
contains the following requirement: each state is obliged to take care of the
victims of natural disasters and other emergency situations, which occur
on its territory. Thus, the aected state plays the main role in initiating,
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Dmitriy Kamensky, Oleksandr Dudorov, Andrii Savchenko, Roman Movchan y Yuliia Danylevska
Criminal liability for humanitarian aid embezzlement during war: The case of Ukraine
organizing, coordinating and implementing humanitarian aid on its
territory (UNGA, 1991).
Humanitarian aid can be provided if it is prescribed by a treaty and
only under the conditions specied in such a treaty, as is the case, for
example, in armed conicts. In particular, the Geneva Conventions for
the Protection of War Victims of August 12, 1949 and Additional Protocols
to these conventions dated June 8, 1977 are international documents,
which create imperative obligations for the participating countries to
provide humanitarian assistance and establish specic conditions for such
assistance.
With reference to Art. 23 of the Geneva Convention on the Protection
of the Civilian Population in Time of War of August 12, 1949, each High
Contracting Party allows the free passage of all parcels with medicines
and sanitary materials, as well as items necessary for the performance of
religious rites, which are intended exclusively for the civilian population of
the other High Contracting Party, even if that Party is a hostile one.
In accordance with Part 1 of Art. 18 of the Additional Protocol to the
Geneva Conventions of August 12, 1949, relating to the Protection of Victims
of Armed Conicts of a Non-International Character (Protocol II), of June
8, 1977, relief societies located in the territory of the High Contracting Party,
such as the Red Cross Crescent, Red Lion and Sun), may oer services to
fulll their traditional functions for victims of an armed conict.
If the local civilian population suers extreme hardship due to the
insucient supply of essentials for its survival, such as food and medical
supplies, then with the consent of the High Contracting Party concerned,
operations to provide assistance to the civilian population are carried
out, which are of an exclusively humanitarian and impartial nature and
are carried out under any unfavorable dierence (Part 2 of Article 18).
Obviously, various issues of logistics and transport related oenses, which
include delivery of humanitarian aid items, also can rise as a practical
matter (Minchenko et al., 2021).
As the Swiss author F. Schwendimann observes, today the number of
humanitarian organizations has increased signicantly. This means that
one needs to coordinate one’s actions even more during the implementation
of humanitarian projects. In addition, in practice, the boundaries between
military, political and humanitarian operations often become blurred –
such processes are intertwined. If a party to the conict or part of the local
population begins to use the humanitarian mission for its own political
purposes, access to those who really need help can be seriously hampered.
What is more: volunteers and representatives of humanitarian organizations
on the ground may themselves become objects of armed attacks or other
aggressive actions (Schwendimann, 2011).
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The Spanish commentator R. Stoels points out that modern approaches
to understanding the mission of humanitarian aid during armed conicts
create a confusing picture. Currently, there are many public and private
humanitarian organizations operating in the world.
Their ongoing activities contribute to saving lives and alleviating the
suering of those, who do not take part in armed conict and those who are
deprived of the basic life necessities because of hostilities. Organizations
responsible for compliance with international humanitarian law and
international human rights, and under certain circumstances, persons
responsible for ghting threats to international peace and security, also
take serious measures when parties to the conict impede eorts to provide
humanitarian assistance (Stoels, 2004).
We will not further emerge into the international legal aspects of the
issue of humanitarian aid, given the other, mainly “national law” direction
of our research, as stated in the title of this paper.
Turning to Ukrainian legislative realities, we note that in Art. 1 of the
Law of Ukraine of October 22, 1999 “On Humanitarian Aid” (hereinafter
– the Law of October 22, 1999) reected such a broad approach, because
humanitarian aid is dened here as targeted free aid not only in monetary
or in-kind form, in the form of non-refundable nancial assistance or
voluntary donations, but also in the form of performing certain works or
providing services.
However, since within the text of Art. 201-2 of the Criminal Code of
Ukraine (hereinafter – Criminal Code) only “goods (items) of humanitarian
aid” and “such property” appear, non-targeted use of humanitarian aid,
which is provided in the form of performing works or providing services,
does not form part of the criminal oense provided for in Art. 201-2 of the
Criminal Code. This applies to free aid (a type of humanitarian aid), which
can also be provided in the form of work and services.
Hence, there is inconsistency between the analyzed criminal law
prohibition and the prescriptions of the regulatory legislation, and
therefore, a violation of the principle of systemic and legal consistency of the
criminalization of the act. Another similar inconsistency must be stated due
to the fact that Part 1 of Art. 201-2 of the Criminal Code refers to charitable
donations and at the same time does not mention those, which appear in
the Law of Ukraine of July 5, 2012 “On Charitable Activities and Charitable
Organizations” (hereinafter – the Law of July 5, 2012) along with charitable
donations, charitable grants (targeted assistance in the form of currency
values, which must be used by the beneciary within the period determined
by the benefactor).
On the one hand, approach according to which the use or disposal of
charitable grants for the purpose of obtaining prot can be qualied under
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Dmitriy Kamensky, Oleksandr Dudorov, Andrii Savchenko, Roman Movchan y Yuliia Danylevska
Criminal liability for humanitarian aid embezzlement during war: The case of Ukraine
Art. 201-2 of the Criminal Code, indicates the disclaimer made in Part 2 of
Art. 6 of the Law of July 5, 2012: provisions on charitable donations apply
to charitable grants, unless otherwise specied by law. On the other hand,
such approach can be criticized as the one violating the prohibition on the
application of the law on criminal liability by means of analogy (Part 4 of
Article 3 of the Criminal Code).
Failure of the title of Art. 201-2 of the Criminal Code is such that it does
not cover all possible forms of committing a criminal oense for which this
article provides liability. As an option, the improved title of this article of the
Criminal Code could be like this: “Illegal actions regarding humanitarian aid,
charitable donations or free aid”, since the construction “illegal actions...”
has already been successfully tested in the names of articles 169, 200, 313,
388 of the Criminal Code. At the same time, we would like to note that
under Art. 201-2 of the Criminal Code such actions, for example, cannot be
addressed as destruction or damage of the relevant property (in such cases,
the “general” articles of the Criminal Code dedicated to criminal oenses
against property are applicable), violation of the procedure for writing o
goods (items) of humanitarian aid, which have a certain term of operation
(here, in particular, articles of the Criminal Code on criminal oenses in the
eld of ocial activity should be used).
Since the untargeted use of humanitarian aid, charitable donations,
other than the disposal of such property for the purpose of obtaining prot,
does not form the criminal oense under review, de lege ferenda Art. 201-
2 of the Criminal Code (provided the expediency of its future existence or
that of its analogue) should provide for liability, among other things, for
the unintended use of goods without signs of theft, which are currently the
subject of the analyzed oense.
It should be understood that criminal liability for the combined use of
humanitarian and gratuitous aid, charitable donations, and disposal of such
property for the purpose of obtaining prot existed even before the adoption
of the Law of March 24, 2022. In other words, introduction of Art. 201-1
into the Criminal Code can be characterized as excessive criminalization.
The result of the desire to “establish criminal liability” for actions
that were previously recognized as criminally illegal was the appearance
of a special norm in the Criminal Code (Article 201-2), which represents
inappropriate humanization of criminal liability. It is another matter that
today the shortcomings inherent in the punishment of the researched
oense are eliminated by incriminating part 3 of Art. 201-2 of the Criminal
Code on the grounds of committing acts during martial law.
We believe that in the vast majority of cases actions listed in Art. 201-2
of the Criminal Code, in its absence would be recognized under Ukrainian
law as embezzlement, and more specically, such “classical” encroachments
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on property as: 1) embezzlement, when someone else’s property ceases
to exist in its previous physical form; embezzlement can take the form of
consumption of goods and material values, spending money, alienation
of property in one way or another – its sale, gift, exchange, loan or loan
repayment, etc.; 2) appropriation – turning to one’s own benet or to the
benet of other persons the property which is in the legal possession of
the culprit, having been entrusted to him or handed over to him; in case of
appropriation, the property retains its existence in physical and tangible
form; 3) taking possession of someone else’s property by abusing ocial
position (Art. 191 of the Criminal Code).
If the elements of this criminal oense could not be seen in what was
committed (in particular, due to the absence of a special subject), then
almost all actions specied in the current wording of Art. 201-1 of the
Criminal Code, subject to the establishment of illegality and gratuity,
would receive an assessment on the basis of other articles of the Criminal
Code on liability for criminal oenses against property. Moreover, these
would be both provisions on embezzlement – encroachments related to the
conversion of someone else’s property to one’s own benet or the benet of
other persons, and Art. 192 of the Criminal Code “Causing property damage
by deception or abuse of trust” (the criminal oense provided for by this
article of the Criminal Code, in particular, may dier from theft or other
illegal use of someone else’s property (including entrusted property), as
well as disposing of it with the purpose of obtaining prot.
Law enforcement practice conrms our thesis that we are dealing with
excessive criminalization in this case. For example, it has been stated in
the decision of the investigating judge of the Rivne city court of the Rivne
region on the application of a preventive measure that a person has been
notied of the suspicion of committing a crime under Part 3 of Art. 201-2
of the Criminal Code.
It was established that this person, while having the intention of
selling humanitarian aid goods in a signicant amount for the purpose of
obtaining prot, illegally sold to another person four passenger cars for
the total amount of UAH 666,533.29. These cars were imported to the
territory of Ukraine in the form of humanitarian aid in accordance with
the requirements of the resolution of the Cabinet of Ministers of Ukraine
dated March 1, 2022 No. 174 “Some issues of the passage of humanitarian
aid through the customs border of Ukraine under martial law” (Decision,
2022).
Next, turning to the relevant experience of individual European states,
we will try to identify criminal law statues, which are similar to Art. 201-2
of the Criminal Code of Ukraine.
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Criminal liability for humanitarian aid embezzlement during war: The case of Ukraine
According to Art. 226 of the Criminal Code of the Federal Republic of
Germany any person who abuses the authority granted to him by law or
legal agreement to dispose of the assets of another person or enter into other
binding agreements with such assets with another person, or any person
who violates his duty to protect the property interests of another person,
which are entrusted to him on the basis of the law, through the exercise of
authority, legal transaction or duciary relations, and thus causes damage
to the person for whose property interests he was responsible, shall be
punished by imprisonment for a term of up to years or a ne (German
Criminal Code, 1998).
In this rather cumbersome wording, if we refer to Ukrainian criminal
law terminology, we are talking about the appropriation (waste) of
someone else’s property which was entrusted to a person, that is about the
encroachment described in Art. 191 of the Criminal Code of Ukraine. At the
same time, we were not able to identify provisions in the Criminal Code of
the Federal Republic of Germany, which would prohibit the appropriation
and embezzlement of humanitarian aid and the content of which would be
similar to the content of Art. 201-2 of the Criminal Code of Ukraine.
According to § 1 of Art. 284 of the Criminal Code of Poland, appropriation
of someone else’s movable property or property rights is punishable by
imprisonment for a term of up to 3 years. At the same time, misappropriation
of someone else’s movable property entrusted to a person is punishable by
imprisonment for a term of 3 months to 5 years (§ 2 of Art. 284 of the
Criminal Code of the Republic of Poland) (Polish Penal Code, 1997).
As for foreign (non-Polish) researchers, it is quite dicult for us
to comprehend why the Polish legislator has put the element of trust as
the basis for distinguishing between the two above-mentioned types of
appropriation of another’s property. However, without plunging deeper
into the intricacies of qualication under Art. 284 of the Criminal Code of
Poland (due to a dierent focus of our research), we note that this article
is also reminiscent, same as the aforementioned German ban, of Art. 191 of
the Criminal Code of Ukraine.
Based on Art. 372 of the Criminal Code of Hungary, cases where a person
illegally appropriates or disposes of a thing entrusted to him as his own,
are punished by law. At the same time, such a crime-forming feature as
embezzlement in an emergency situation and embezzlement in commercial
dimensions is singled out (Criminal Code of Hungary, 2012). The meaning
of the element of emergency situation generally corresponds to the content
of the aggravating element “in conditions of war or a state of emergency”
provided for in part 4 of Art. 191 of the Criminal Code of Ukraine.
The Hungarian legislator does not consider it necessary to single out
the norm devoted to embezzlement or other illegal actions with items
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of humanitarian aid or any specially dened items – the link between
punishment and the amount of damage caused by embezzlement is
established in dierent parts of Art. 372 of the Criminal Code of Hungary.
Comparative data on humanitarian aid embezzlement statutes in several
European jurisdictions is presented in the Figure 1.
Country General Embezzlement
Statute Humanitarian Aid
Embezzlement Statute
1. Germany Art. 226, Criminal Code of the
Federal Republic of Germany No
2. Hungary Art. 372,Criminal Code of Hungary No
3. Poland § 1 of Art. 284, of the Criminal
Code of Poland No
4. Ukraine Art. 191, Criminal Code of Ukraine Art. 201-2, Criminal Code
of Ukraine
Fig. 1. General embezzlement statutes and humanitarian aid embezzlement
statutes in various European jurisdictions. Source: prepared by the authors.
Therefore, we were not able to identify an analogue of Art. 201-2 of
the Criminal Code of Ukraine in the criminal law of the above-mentioned
European countries. This once again leads us to the conclusion that this
ban is recognized as a kind of unjustied casuistic manifestation of ad hoc
criminal law-making.
Taking into account the fact that in the absence of Art. 201-2 in the
Criminal Code illegal actions regarding humanitarian aid, charitable
donations or free aid would be qualied mainly according to the relevant
parts of Art. 191 of the Criminal Code, we consider it expedient that the
value criteria characterizing the subject of the analyzed criminal oense
are clearly overstated and over-specied in paragraph 2 of the footnote to
Art. 201-2 of the Criminal Code. This brings it into line with quantitative
indicators specied in clauses 2, 3 and 4 of Art. 185 of the Criminal Code,
which relate to criminal oenses against property and which also apply to
Art. 191 of the Criminal Code.
The “purpose of obtaining prot” element of the oense, which in
the structure of Part 1 of Art. 201-2 of the Criminal Code “replaces” the
element of illegality indicated in the title of this article, as ambiguous. On
the one hand, the wording “for the purpose of obtaining prot” is borrowed
(literally) from the regulatory legislation (Article 12 of the Law of October
22, 1999). On the other hand, such legislative step can play a bad joke in
practice.
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Dmitriy Kamensky, Oleksandr Dudorov, Andrii Savchenko, Roman Movchan y Yuliia Danylevska
Criminal liability for humanitarian aid embezzlement during war: The case of Ukraine
The fact is that the normative indication of the purpose of obtaining prot
complicates incrimination of Art. 201-2 of the Criminal Code in cases where
the illegal disposition of the property specied in this article of the Criminal
Code will take the form of, for example, donation, transfer to repay a debt,
compensation for damages or as a payment for work performed or services
rendered. In practice, there are also quite a few cases when humanitarian
aid is used in one’s own (personal) interests or in the interests of third
parties, without receiving prot. The pressing nature of the indicated
problem increases because of a potentially restrictive understanding of the
concept of “prot” (the dierence between the amount of income and the
amount of incurred expenses).
At the same time, we do not rule out that in practice the “purpose of
obtaining prot” will be interpreted as broadly as possible – as receiving
any (property or even non-property) compensation for the property
illegally disposed of by the guilty party, which will in turn increase the scope
of eorts by an attorney. We believe that the reference to the “purpose of
obtaining prot” in the title and disposition of Part 1 of Art. 201-2 of the
Criminal Code does not meet the needs of law enforcement practice. It
also signicantly complicates the process of proof in criminal proceedings.
Therefore, we propose to exclude the indication of the specied purpose
from Art. 201-2 of the Criminal Code.
Considering the fact that the illegal use of humanitarian aid often involves
implementation of complex criminal schemes, in which representatives
of the authorities, law enforcement ocers, military personnel, etc. are
involved, de ledge ferenda the corruption-related nature of the investigated
criminal oense cannot be ignored. Unfortunately, corruption remains
among the major threats to the national security of Ukraine – while
penetrating into all spheres of public life, it damages the most important
social values of both the state as a whole and its individual citizens in
particular (Vozniuk et al., 2021).
Hence, we suggest replacing the construction “using ocial position”,
which is used in Part 2 of Art. 201-2 of the Criminal Code, with another
wording – “by abusing ocial position”. In the future, subject to the will of
the legislator, this will make it possible to classify such a criminal oense as
a corruption oense, for which it will be necessary to amend the footnote to
Article 45 of the Criminal Code, which lists corruption oenses.
In our opinion, within the improved Art. 96-3 of the Criminal Code, the
commission of a criminal oense by an authorized person on behalf of and
in the interests of a legal entity, provided for in Article 201-2 of this Code,
must be recognized as grounds for applying criminal law measures to the
legal entity. Hence, additional mechanisms of criminal law protection of
relations will be created, thus ensuring the provision of humanitarian aid,
charitable donations or free assistance.
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Conclusions
Therefore, the introduction of Art. 201-2 in the Criminal Code can be
characterized as an example of excessive criminalization: in this case, we are
talking about an act, which is inherent in the social harmfulness necessary
for criminalization, but which did not require criminalization, since
criminal liability for it has already existed. Criminal laws of some European
countries, in which there are no analogues of the analyzed criminal law
prohibition, additionally attest to the fact that, there are reasons to regard
Art. 201-2 of the Criminal Code as a manifestation of unjustied casuistry of
the criminal law and excessive criminalization. The negative consequences
of the latter include: violation of the principle of economy of criminal law
repression; articial creation of unwanted collision between criminal law
norms; the emergence of paradoxical situations in which the same act
entails application of signicantly dierent criminal law means.
At the same time, it is obvious that during the war, when abuse of
humanitarian aid is particularly unacceptable and causes signicant
public outcry, the Ukrainian legislator is unlikely to take such a drastic and
unpopular step as the exclusion of Art. 201-2 from the Criminal Code.
Therefore, members of jurisprudence community should focus their
eorts on consideration of debatable issues related to the interpretation,
application and improvement of Art. 201-2 of the Criminal Code. We believe
that the latter needs improvement at least in terms of: 1) clarication of the
ocial title: the proposed title of Art. 201-2 of the Criminal Code – “Illegal
actions regarding humanitarian aid, charitable donations or free aid”; 2)
exclusion of words “for the purpose of obtaining prot” from the title and
disposition of Part 1 of Art. 201-2 of the Criminal Code; 3) adjustment of
the value criteria, which characterize the subject of the analyzed (actually
“proprietary”) criminal oense and specied in paragraph 2 of the footnote
to Art. 201-2 of the Criminal Code, with the notes specied in clauses 2, 3
and 4 of Art. 185 of the Criminal Code with quantitative indicators relating
to criminal oenses against property.
In addition, by using construction “by abuse of ocial position” in the
improved Part 2 of Art. 201-2 of the Criminal Code and making amendments
to the note of Article 45 of the Criminal Code, the idea of classifying relevant
manifestations of the illegal use of humanitarian aid among corruption
criminal oenses could be implemented.
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